Last week Deputy Attorney General James M. Cole presented a thoughtful argument why Congress should not enact the Fairness in Disclosure of Evidence Act of 2012 which would for the first time codify the obligation of prosecutors to disclose favorable evidence to the accused. (see testimony here) Distilled to its essence, DOJ contends that reform is unnecessary since there has been no showing of a systemic failure of the current system to deny exculpatory evidence to defendants. Moreover, various provisions of the proposed law would further endanger the lives of witnesses and undermine the government’s ability to convict some of the most violent criminals in the country. These are serious objections, likely to find a receptive audience by Congressman afraid of being accused of helping gang members escape justice.

Fear may be the most powerful motivator. And it is an appeal to fear that is at the core of Mr. Cole’s testimony. But that does not mean his concerns are unfounded. Criminal defense counsel often represent witnesses who are very afraid of those charged with a crime. Those of us who have represented witnesses who have been harmed, as I have, understand that in some federal cases, the danger of death or injury is very real. But that danger exists regardless of whether prosecutors must turn over exculpatory evidence or favorable evidence, or whether such discovery must be made after arraignment or a few days before trial. So long as the Sixth Amendment guarantees the accused the right to confront his or her accusers, witnesses will always testify at their peril. This is why there is the Witness Protection Program. Fundamentally, the flaw in Mr. Cole’s testimony comes from the very examples he cites. Under the current system, witnesses are sometimes harmed. He fails to make a convincing case that either a broader standard or earlier disclosure will lead to an increased risk. And he ignores the fact that the proposed legislation provides for a protective order where the government can show a reasonable basis to believe that a required disclosure would lead to an effort to tamper with a witness. Similarly in claiming that the proposed legislation would undermine national security he fails to explain why the Classified Information Procedures Act is insufficient to protect our nation’s secrets. He just claims it is.

Mr. Cole also relies upon a statistical analysis that purports to show that serious allegations of government mishandling of Brady material has occurred in only a very small percentage of cases, less than three hundredth of one percent of the nearly 800,000 case brought in the last ten years. This is a significant argument because the burden is on the proponents of reform to demonstrate that there exists a problem that is in need of remedy. Mr. Cole’s analysis fails to take into consideration the fact that some 90% of the cases brought by the government result in pleas. Since there is no obligation to provide Brady material during plea negotiations such material is not provided unless the accused actually goes to trial. Mr. Cole’s statistical analysis also contains a built in bias since allegations of Brady violations are almost always evaluated under a harmless error standard. The upshot here is that regardless of the language of the Supreme Court’s decision in Kyles, circuit courts will rarely find a Brady violation absent a showing that the material withheld contributed to the jury’s verdict. Under such a standard, Mr. Coles can contend that reform is not needed since there has been no demonstration of systemic failure; systemic failure defined in such a way as to insure that no such showing could be made.

Finally, Mr. Cole contends that the government already provides greater discovery than is required by the law. Once again, there is no evidentiary support for this contention. While it may be DOJ policy that such evidence should be disclosed, because the law does not currently require such disclosure, prosecutors are under no legal obligation to actually apply DOJ guidelines and suffer no punishment when they fail to do so. Indeed, the current regime incentivizes prosecutors to evade Brady since prosecutors can enhance the odds of conviction through non-disclosure knowing that after a conviction appellate courts are loath to reverse.

The government’s strategy to defeat Brady reform is based upon convincing Congress that the existing system already strikes the right balance between the defendant’s right to a fair trial and the government’s interest in the wellbeing of its witnesses and preserving national security. New laws are not needed, DOJ contends, just more effective compliance with the existing law. The government is wrong. But in this instance, as in many decisions regarding criminal justice, fear trumps facts and despite the justifiable outrage at what happened to Senator Stevens, Congress is not likely to change the status quo.